Every unhappy court is unhappy in its own way ... ACT government and Supreme Court in long-running stand off ... Delays and despair ... No rush by CJ to welcome new appointment
As expected ACT chief magistrate John Burns goes to the territory Supremes when Malcolm Gray retires at the end of this month.
Two more appointments are to come.
It's anticipated that magistrate Karen Fryar will get Burns' old gig as Chief Madge, but who will get Gray's job as president of the mighty ACT Court of Appeal?
This is a hard one for a four person court (Higgins CJ, Richard Roughshagger and Hilary Penfolds-Creme-Sherry, plus new boy Burnsy).
Ideally, it would be good to have someone who can write a judgment in under two years, which narrows the field quite a bit.
Numerous sources tell us that unhappiness abounds. Chief Justice Terry Higgins is not meaningfully consulted by the ACT government on judicial appointments, and as for the previous two judicial appointments there were "issues".
Justice Penfold had been a parliamentary draughtsperson and parliamentary counsel and head of the department of parliamentary services, and not a practising lawyer.
With Refshauge's appointment in 2008 things got off to a tense start. When he was the ACT DPP he published an annual report in which he indicated there was antipathy from the bench towards his office.
His appointment came as a surprise to the CJ, as the government had not advised the court in advance.
It is understood that there was also a similar lack of communication concerning Burns' elevation.
It is understood that as of five days after his appointment was announced, Terry Higgins had not offered his congratulations to the new judge.
There was been a long-running stand-off between the court and the government. The judges ask for more resources. The government responds by saying there will be adequate funding when the judges demonstrate they are working to capacity.
The implication being - knock-off the long lunches.
Despite his solid credentials, Burns' appointment has not gone down well with some at the local bar 'n' grill. This may be the last judicial appointment in the territory for some time. Opportunities are dwindling.
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Recently we reported a two year gestation for one of Creme-Sherry's judgments, now we've come upon one of Roughshaggers that took three years. Well two days short of three years, to be fair.
QBE Insurance (Australia) Ltd v Insurance Australia Ltd was heard on March 13, 2008 and the judgment was handed down on March 11, 2011.
The injured plaintiff lost.
Justice Refshauge explained:
"It is extremely regrettable that the busy workload of the court has delayed the delivery of judgment and these reasons for longer than is desirable. Nevertheless, I have carefully read the whole of the transcript and the exhibits that were tendered at the hearing as well as perusing my contemporaneous notes. I found that I had a good recall of the proceedings and the demeanour of Mr Rice as he gave evidence, notwithstanding the passage of time."
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Background
Fryar: in the running to be Chief MadgeBurns has spent more than 20 years as a Canberra madge. Along with Karen Fryar he made an allegation to the attorney general in 2009 that former CM Rapid Ron Cahill had perverted the course of justice.
This related to one of Canberra long-running judicial sores concerning an assault charge against a prominent ACT citizen and judicial officer, whose name has been suppressed, even though everyone knows who he is.
Victorian magistrate Peter Lauritsen came up to try the charge against the prominent, but unmentionable, citizen.
Rapid Ron was a friend of the accused and helpfully provided Lauritsen with what looked like "submissions for the defence": no prior record, involvement in charitable work, and provocation by the victim. He also included a list of relevant cases and a copy of the suppression order.
Lauritsen had the impression that he was being "got at". Ron's chambers were raided by the coppers and a few days later he resigned.
A special commission of wise men, James Wood, Jerrold Cripps and Ted Mulligan, who had been instructed to investigate the matter, was disbanded.
Constable Plod pressed on for another 10 months, but there was not enough in it to satisfy the DPP that he could get a conviction.
Ron always said that in providing this material to the interstate magistrate he was just keen to make sure the prosecution ran "appropriately". It's easy to see how people might get a confused impression in a small judicial pond.
Cahill was never charged and the unmentionable citizen had no conviction recorded in his assault case.